April 2019

We’re now into April, which means that the government’s new “age verification” system is in place, all with the aim of preventing under age people from accessing pornographic content.

Section 14 of the Digital Economy Act 2017 creates new requirements for service providers to prevent access by under 18s, which means it’s no longer as simple as “stumbling” across a site by typing something into Google.

Section 14 defines “pornographic material” as anything which has an “R18” films certificate, anything which should have an R18 certificate and:-

Any other material if it is reasonable to assume from its nature –

That it was produced solely or principally for the purposes of sexual arousal, and

That any classification certificate issued in respect of a video work including it would be an 18 certificate.

The section applies to video, film, with or without sound, still images, with or without sound, or just sound.

The regulator in this case is the British Board of Film Classification.

In practise, this means that if you want to view X rated websites you are going to have to verify your age.

There’ll be different ways of doing this, from acquiring a “porn pass” from a newsagent or ISPs requiring a scan of a passport or driving license or directing you to a page which requires credit card details.

And they’re not messing around – enforcement is by civil court proceedings and I understand the government has set aside a fighting fund of £10 million to deal with defences.

If you are accessing this type of material be mindful that in 2012, for example, YouPorn had 1,327,567 compromised data accounts.

How do I feel about this personally? I don’t see how all of this is going to work.

I understand children are experienced at using Virtual Private Network accounts, which can hide where you are in the world.

Can we regulate what connections the websites will accept?

Will this push children towards “VPNs” and the “dark web” and have the opposite effect?

How will the ISPs cope with European GDPR? Lots of questions, and no clear answers.

We’ll keep an eye out for how this progresses and will report on it when we’ve got more information.

There’s a fairly unpleasant sounding term that’s doing the rounds in the news a lot recently – “revenge porn”.

What exactly is it?

Well, Section 33 of the Criminal Justice & Courts Act 2015 created this as an offence, and – in short – it’s the disclosure of a private sexual photograph or film without the consent of the person in the image with the intention of causing them distress.

Subsection 3 states that a photograph or film is sexual if:-

It shows all part of their genitals or pubic area; or

It shows something that a reasonable person would consider to be sexual because of its nature; or

Its content, taken as a whole, is such that a reasonable person would consider it to be sexual.

Disclosing such content is “by any means…”

I.e. not just on social media, or on the internet.

Any act that sees you showing a private sexual photograph or film of your ex-partner to anyone is an offence, if you intend to distress them by doing it.

That legal caveat might sound strange, but legally, it’s important: the intention to cause distress cannot be automatically inferred, and the prosecution must show that the publisher intended to cause distress.

In December 2015 Brendan McCarthy – also known as Dr Evil – was arrested.

After a preliminary ruling in the Court of Appeal, on the 12 February 2019, Mr. McCarthy admitted three counts of wounding with intent to cause grievous bodily harm – even though his victims (or “customers” if you wish) had consented to the procedures.

The charges put to Mr. McCarthy were under Sections 18 of the Offences against the Person Act of 1861 which reads:-

…………..wounding with intent to do grievous bodily harm.

Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, . . . with intent, . . . to do some . . .grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and being convicted thereof shall be liable . . . to be kept in penal servitude for life.

The charges related to:

a Mr Lott who had his left ear removed on the 23 July 2015;

an unknown female had her tongue split with a scalpel on the 23 July 2012;

another victim who had their nipples cut out.

All of them signed a consent agreeing to Mr. McCarthy performing the procedure.

But crucially, the Act does not mention consent.

The leading case in this area is R v Brown 1994 in the House of Lords (now called the Supreme Court).

In that case a group of sado-masochistic individuals appealed from their conviction under the act following prosecution for committing acts of violence against each other, including genital torture. The passive partner (or victim) in each case consented to the acts being committed and suffered no permanent injury.

Here’s how Lord Templeman responded to the argument that every person has a right to deal with their body as they choose:

“I do not consider that this slogan provides a sufficient guide to the policy decision which must now be made. It is an offence for a person to abuse his own body and mind by taking drugs. Where the law is often broken, the criminal law restrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society generally.”

He also noted:

The victims were youths, some of whom were introduced to sado-masochism before they attained the age of 21. The evidence disclosed that drink and drugs were important to obtain consent and increased enthusiasm.

Lord Jauncey added:

It was accepted by all the Appellants that a line had to be drawn somewhere between those injuries to which a person could consent to infliction upon himself and those which were so serious that consent was immaterial.

Lord Lowry:- …

Everyone agrees that consent remains a complete defence to a charge of common assault and nearly everyone agrees that consent of the victim is not a defence to a charge of inflicting really serious personal injury (or “grievous bodily harm”).

In the present case, the Court followed R v Brown and observed:

What the Defendant undertook for reward in this case was a series of medical procedures performed for no medical reason.

and

The fact that the desire to have an ear or nipple removed or tongue split is incomprehensible to most, may not be sufficient in itself to raise the question whether those who seek to do so might be in need of a mental health assessment. Yet the first response in almost every other context to those who seek to harm themselves would be to suggest medical assistance. That is not to say that all who seek body modification are suffering from any identifiable mental illness, but it is difficult to avoid the conclusion that some will be, and that within the cohort will be many who are vulnerable.

and

In short, we can see no good reason why body modification should be placed in a special category of exemption from the general rule that the consent of an individual to injury provides no defence to the person who inflicts that injury if the violence causes actual bodily harm or more serious injury.

To my mind where to draw the line is a very difficult question.

However, most people of goodwill would think that seriously invasive medical procedures should be regulated to screen out the mentally ill and so that they are only carried out by trained medical practitioners.

Given that whatever happens is likely to have an impact on you, I thought it’d be sensible to explain the state of play.

So what options are available to Parliament before April 12th?

Decide to extend the Article 50;

Revoke the Article 50 Notice;

Conclude the Withdrawal Treaty;

Exit without the Withdrawal Treaty.

When the UK leaves the EU, Article 50 states that the EU Treaties will cease to apply to the UK.

If the Withdrawal Treaty is concluded it is likely that:

A post exit transition period will run from the Exit Day until the 31 December 2020;

This transition period could be extended for up to 1 or up to 2 years by decision of the joint committee (this joint committee is established by Article 164 of the present Withdrawal Treaty and includes UK and EU representatives);

Most EU law (including amended and supplemental law) will continue to apply to the UK during this period;

The future relationship will be formally negotiated based on the terms set out in the political declaration (an appendix to the Withdrawal Treaty which gives a framework for the future relationship that UK and EU negotiators aim to make before withdrawal);

If an agreement on the future relationship is not agreed at the end of the transition period (or any extension of it) the withdrawal agreement backstop would come into effect.

What is the backstop?

The backstop establishes a single UK –EU customs territory, aligning Northern Ireland to EU customs and single market rules, allegedly required to avoid a hard border.